9th Circuit Deals a Blow to Military's Don't Ask, Don't Tell Policy

In brief, all three judges on the panel found the policy to be constitutionally infirm.

The plaintiff raised both substantive due process and equal protection claims.

The two judges writing in the majority held as follows:

(1) Substantive due process claim: The judges concluded that Lawrence v. Texas requires heightened (intermediate) scrutiny of the law because it infringes on a fundamental right. Under that standard, as articulated by the judges, the law must (a) significantly further (b) an important governmental interest; and (c) the law must be necessary to further that interest, with no less intrusive means available that would further the interest. The analysis is to be done on an as-applied basis to each person impacted by the policy.

(2) Equal protection claim: The judges concluded that such a claim is subject only to rational basis scrutiny and that it survives such scrutiny (based on prior precedent in the Circuit).

The third judge would go further, holding as follows:

(1) Substantive due process claim: He would apply strict scrutiny.

(2) Equal protection claim: He would apply strict scrutiny, for two different reasons: (a) that gays and lesbians are a suspect class; and (b) the statute impinges on a fundamental right.